It’s one thing for a plaintiff’s lawyer to say the new hours of service rule for commercial truck drivers is a threat to highway safety. But now the American Insurance Association (AIA) is saying the same thing.
The AIA has expressed extreme disappointment that the Federal Motor Carrier Safety Administration has approved rules that would allow commercial truckers to drive more with less rest, thus increasing the risks to others who use the nation’s roads.
“A major contributing factor to truck crashes is fatigue,” said David Snyder, AIA vice president and assistant general counsel. “While the new Federal Motor Carrier Safety Administration (FMCSA) hours of service rule only would specifically apply to commercial drivers, it potentially affects everyone else on the road.”
The new FMCSA rule – set to take effect Oct. 1 – would increase maximum time behind the wheel from the current limit of 10 hours to 11 hours, “wholly disregarding scientific research that clearly shows an increased crash risk associated with longer driving hours,” Snyder noted. “Sadly, this replicates part of a flawed approach to regulation that was struck down by a federal court when FMCSA originally proposed it in 2003.”
According to the Insurance Institute for Highway Safety:
* 5,000 people die each year in crashes involving large trucks, of which approximately 85 percent are not truck occupants;
* In fatal two-vehicle crashes involving passenger vehicles and large trucks, 98 percent of the deaths are people in the passenger vehicles; and
* Large trucks accounted for 3 percent of registered vehicles and 7 percent of vehicle miles traveled in 2003, but were involved in 11 percent of all motor vehicle crash deaths.
“Clearly, when truck drivers are drowsy, they are more crash-prone; and just as clearly, it is usually not the trucker who is injured or killed when two vehicles are involved. This new rule runs counter to the FMCSA’s mission to put safety first,” stated Melissa Shelk, AIA vice president, federal affairs. “The court was right to toss it out and Congress was right when they specifically rejected its inclusion in the recently enacted federal highway reauthorization bill.”
Snyder added that these same rules would apply to Mexican and Canadian drivers, which “raises additional enforcement and safety concerns, because a firm knowledge of how many hours were driven before entering theU.S.is virtually impossible to obtain.”
Tractor trailer runs red light, crashes into parked car in Albany, GA
Albany, GA, 8/22/05.
A tractor trailer ran a red light, struck a woman who had pulled off the road, jackknifed, then struck another vehicle. Kelly Henderson of Albany was reported in critical condition. See news story.
Car crushed and burned, driver killed, when rearended by tractor trailer on I-75 in Florida
Gainesville, FL, 8/23/05.
A tractor trailer crashed into the rear of a PT Cruiser that had slowed for traffic congestion on I-75, crushing that vehicle and pushing it into a pickup truck. The driver of the PT Cruiser, which was crushed and burned beyond recognition, was killed.
The crash occured about 11:30 PM. Driver fatigue is a major problem in the trucking industry. Sleep medicine specialists are often helpful in connecting drivers’ hours of service violations with causation of such crashes.
Tractor trailer crosses median, kills two in opposite lanes
East Greenbush, NY, 8/19/05.
A tractor trailer traveling on I-90 near Albany, NY, crossed over the median for no apparent reason and collided with two oncoming cars, killing both drivers. Police did not immediately report any cause for the trucker to cross over the median. See news story.
Dozing truck driver flips over, kills man pumping gas
Truck wreck
Electronic filing in Georgia’s federal courts
We have observed that a lot of Georgia lawyers are having trouble getting up to speed on electronic filing. See article. Fortunately, I have a good paralegal who keeps me straight on these things.
Here are links to court rules and attorney registration web sites regarding electronic filing:
Northern District (Atlanta, Rome, Gainesville, Newnan) — rule — registration
Middle District (Macon, Columbus, Albany, Valdosta, Athens, Thomasville) — CM/ECF access
Southern District — not applicable
Proposed new Georgia Rules of Evidence
One advantage of serving on the State Bar Board of Governors is early access to proposed rules changes. The latest is the proposed new Georgia Rules of Evidence, prepared over the past few years by the State Bar’s Evidence Study Committee. It is generally based on the Federal Rules of Evidence. Numerous other sections are are carried forward from current Georgia law. Some the more poorly conceived details regarding the Daubert standards for admission of expert testmony contained in the 2005 tort reform legislation are omitted. I have not yet completed a detailed review of the entire document, but on first impression it looks like an improvement on both Georgia and Federal evidence law. It appears to be on track for passage in the 2006 session of the General Assembly. More later.
Punitive damages for violation of Federal Motor Carrier Safety Regulations
Courts often have been reluctant to allow claims for punitive damages for what some judges have perceived as mere technical violations of hours of service, log book requirements, and other Federal Motor Carrier Safety Regulations. See, e.g., Pittman v. Clay, 2001 WL 1352914 (E.D.Pa.,2001).
However, a recent case illustrates how to lay the foundation for using FMCSR violations to support a claim for punitive damages. In Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005), the plaintiff overcame summary judgment on a claim for punitive damages based on the following parts of the Regulations: (1) operating the Decker rig in violation of the hours of service regulations pursuant to 49 C.F.R. 395.3; (2) operating the Decker rig when he was too tired to do so safely in violation of 49 C.F.R. 392.3; and(3) failing to properly record his duty status in violation of 49 C.F.R. 395.8.
Significantly, the truck driver testified that he was aware that the hours of service regulations were in place to prevent drivers from falling asleep behind the wheel and causing death or serious injuries.
The plaintiff introduced two expert reports to the effect that the violatoins werethe precipitating factors leading to the collision at issue. First was a report from a trucking regulation expert detailing how (1) that the truck driver had been on duty for at least 75.5 hours in the eight days prior to and including the day of the collision in violation of 49 C.F.R. 395.3(b)(2) and that the company should have been aware that the driver’s hours of service had exceeded legal limits; (2) that the truck driver was driving in a state of low mental arousal or fatigue at the time of the collision in violation of 49 C.F.R. 392.3; (3) that the truck driver falsified his time logs in violations of 49 C.F.R. 395.8; (4) that the trucking company failed to have an effective procedure in place to verify drivers’ hours of service and that the company’s flawed log auditing system allowed drivers to exceed hours of service limitations; (5) that the driver’s conduct while employed at the company was outrageous as he knew the hours of service regulations were in place to prevent fatigued drivers from operating large and heavy commercial motor vehicles; and (6) that the company’s policy, procedures and actions were outrageous in that their management and employees knew the hours of service regulations were in place to protect the safety of the monitoring public and knew hours of service was a problem in their operations.
Second, there was a report from a fatigue expert who concluded that the driver momentarily fell asleep with a microsleep (sleep lapse) just prior to the collision. It was his opinion that the truck driver irresponsibly placed himself in a situation where he experienced drowsiness, loss of alertness, inattention, and a microsleep which caused him to fall asleep for a short time just prior to the crash; and that the crash could have been avoided if he had properly complied with the Hours of Service regulations, managed his sleep, work-rest scheduling, and took rest-breaks from driving.
Backdoor tort reform through professional association discipline
Georgia law requires an affidavit from a qualified expert in order to file a medical malpractice case, and has stringent requirements for qualifications of such experts. It is virtually impossible to get a qualified expert within the state, so lawyers handling such cases generally start with the assumption that they will have to go out of state to find an expert willing to testify. Now, medical specialty boards are taking action to discipline and intimidate doctors who dare to testify against other doctors. While there may be extreme situations in which a professional organization would be justified in disciplining a member who gives completely off-the-wall testimony about malpractice, the potential for abuse is obvious. If an expert witness within an area of practice is required to make a case, and the professional organizations within the area of practice intimidate their members from providing truthful and accurate testimony, then the injured patient is denied access to justice in even the most meritorious cases.
Tractor trailer crash shuts down top-end I-285
Once again a tractor trailer crash has shut down a section of Atlanta’a I-285 perimeter expressway, snarling rush hour traffic. At about 5 AM today, a tractor trailer crashed into the median barrier below the Ashford Dunwoody Road overpass. Injuries were reported, but no details about the cause of the crash or extent of injuries were in the early news reports. According to reports, the truck was carrying windshields, which were scattered all over the expressway.
See AJC,WSB,WXIA, and more AJC photos.
I don’t want to prejudge the cause of this crash, but we see an awful lot of incidents in which truckers drive all night, are weary when they hit Atlanta as morning rush hour is beginning, and bad stuff happens.